Port Granby Long Term Waste Management Facility

Table of contents

• 1. Background and Introduction
• 2. Project Requirement
• 3. Attestation of Assurance
• 4. Objectives of the Fairness Monitor Assignment and Methodology
• 5. Fairness Monitor Specific Activities and Findings
• 6. Reference Documents
• 7. Annex to Final Report – Explanation of Fairness Deficiencies

1. Background and introduction

Knowles Consultancy Services Inc. and Hill International Inc. in Joint Venture was engaged as the Fairness Monitor (FM) to observe the competitive procurement process for theprovision of a Long Term Waste Management Facility (LTWMF). This competitive process was undertaken by Public Works and Government Services Canada (PWGSC) through a Letter of Interest (LOI) Solicitation No. EQ754-133082/A and a Request for Proposal (RFP) Solicitation Number EQ986-133623/A. Knowles Consultancy Services Inc. and Hill International Inc. in Joint Venture is an independent third party with respect to this activity.

We hereby submit the Final Report covering our activities covering the LOI phase, the RFP phase, the evaluation of proposals and the selection of the recommended bidder.

This report includes our attestation of assurance, a summary of the scope and objectives of our assignment, the methodologies applied, and specific activities and relevant findings.

Note: We have used terms such as "Contracting Authority official" instead of the name of the official that was included in communications with the FM. Similarly we have referred to two bidders as "Bidder A" and "Bidder B" instead of using the names of the bidders.

2. Project requirement

The Government of Canada identified a requirement for the services of a company to provide a Long Term Waste Management Facility (LTWMF) in Port Granby, Ontario. The project includes construction of an engineered above ground mound to isolate the waste from the environment using multi-layered baseliner and cover system. Monitoring systems will be installed within the mound and around the perimeter of the LTWMF. There will be relocation of approximately 450,000 cubic meters of low-level radioactive waste and contaminated soils excavated safely to the new facility. The site of the new LTWMF will be on stable soil 7000 meters away from the steep bluffs, receding shoreline and sandy soils that characterize the existing waste site.

The project is led and sponsored by Natural Resources Canada (NRCan). A legal agreement between the Government of Canada and the Municipality of Port Hope defining the framework and responsibilities for the Port Granby LTWMF and another project covering work in Port Hope, was established in March 2001. In 2009 the Port Hope Area Initiative Management Office (PHAIMO) was formed with NRCan, Atomic Energy of Canada Limited (AECL) and PWGSC to carry the Port Granby LTWMF project and the Port Hope project to completion.

3. Attestation of assurance

The Fairness Monitor (FM) hereby provides the following qualified assurance statement concerning the procurement process for the provision of a Long Term Waste Management Facility (LTWMF).

It is our professional opinion that the competitive process we observed was not carried out in a fair, open and transparent manner.

The following summary identifies the fairness deficiencies that we identified. Further details on these deficiencies are shown in Annex A to this report.

Summary of fairness deficiencies

1. PWGSC provided direction to the Technical Mandatory Evaluation Team as to how it must evaluate a bidder's response to a Mandatory Requirement of the RFP. This action constitutes a serious fairness deficiency because such direction was contrary to the governance structure of the project pertaining to the evaluation of bids. The governance structure specified that the evaluation of a bidder's response was to be carried out by the Technical Mandatory Evaluation Team.
2. PWGSC accepted certification information from a bidder which had not been requested in accordance with the process specified in a Mandatory Requirement of the RFP, and notwithstanding the fact that PWGSC had specifically advised the bidder that no such information would be accepted. This action constitutes a serious fairness deficiency because PWGSC did not follow a specified mandatory process.
3. PWGSC allowed one bidder to become certified after bid closing but took no action to provide a second bidder with the same opportunity to become certified. This constitutes a serious fairness deficiency because PWGSC did not provide all bidders with an equal opportunity to provide certification documentation and be considered compliant.
4. PWGSC accepted certification documentation from a bidder which did not exist at bid closing but was only obtained approximately two months after bid closing. Such action constitutes a serious fairness deficiency because the action was contrary to the provisions of the RFP which required a bidder to provide documentation to demonstrate that it was currently certified.

4. Objectives of the Fairness monitor assignment and methodology

The overall objective was as follows: provide PWGSC with independent observation of project procurement activities; provide fairness related comments to project officials as early as possible so that appropriate action could be taken to resolve the concerns before fairness was impacted; bring any potential fairness concerns to the attention of the Fairness Monitoring Directorate if there is no timely resolution with project officials; and attest as to the fairness of the procurement process, including its execution.

To accomplish the objective we undertook the following activities:

• became familiar with the project governance structure;
• reviewed the LOI solicitation;
• reviewed the RFP solicitation;
• reviewed all amendments and addenda to the LOI and RFP solicitations including questions submitted by respondents and answers provided;
• reviewed the procedures to be used for the evaluation of responses and the guidance provided to the evaluation team;
• observed the evaluation of responses to the LOI solicitation and the RFP solicitation to ensure that the specified evaluation and contractor selection procedures and departmental policy were followed and consistently applied during the evaluation and selection process; and
• observed the debriefings of unsuccessful respondents. (This activity will be reported on in an addendum to this report.)

5. Summary of Fairness monitor activities and findings

FM Activities and specific findings concerning the Letter of Interest Phase

During the period January 3 to 15, 2013 we reviewed a draft version of the LOI and no fairness deficiencies were identified. The LOI was released to MERX on January 31, 2013 (Document 1). On February 27, 2013 we observed an Industry Consultation meeting and found no fairness related deficiencies. Amendments 1 to 7 to the LOI (Documents 2 to 8) were released to MERX on February 27, March 5, March 8, March 14, March 18, April 17, and April 24, 2013 respectively. The LOI closed on September 30, 2013. We reviewed the LOI and amendments and found no fairness deficiencies.

After the closing date of the LOI on September 30, 2013 the project was put on hold pending approval to proceed with the issuance of an RFP.

During the period July 2 to July 11, 2014, we reviewed a draft version of the RFP and during the period September 23 to October 21, 2014 we reviewed the version that had been released to BuyandSell on September 22, 2014 (Document 9). We provided fairness related comments on the draft and published versions.

FM Activities and findings concerning the request for proposal phase

During the period September 23 to October 21, 2014 we reviewed the RFP that had been published on BuyandSell (Document 9) and Amendments 1 to 27 (Documents 10 to 39). Fairness related comments were provided and appropriate action was taken by project officials. During the period October 24, 2014 to March 6, 2015 we reviewed, in draft and final versions, Questions and Answers and Amendments 4 to 30 (Documents 5 to 31) that were released to BuyandSell. Fairness related comments were provided and appropriate action was taken by project officials.

The RFP closed on March 10, 2015.

FM Activities and findings concerning the evaluation phase

During the period March 9 to 16, 2015 we reviewed the Evaluation Guideline and the Evaluation Grid to be used by the Technical Evaluation Team during the evaluation of the Rated Criteria. Fairness related comments were provided and appropriate action was taken by Contracting Authority officials.

On March 20, 2015 we were advised by Contracting Authority officials that a bidder had been found non-compliant as a result of not meeting a mandatory bid bond requirement in the RFP. No fairness deficiency was identified related to this finding.

Also on March 20, 2015 we observed the consensus evaluation of Mandatory Technical Requirements carried out by the Technical Mandatory Evaluation Team. Fairness related comments were provided to the Technical Mandatory Evaluation Team. Some comments relating to Mandatory Requirement 4.3 Quality Management System, were not satisfactorily addressed during the consensus evaluation process. Subsequent to the evaluation team meeting, Contracting Authority officials decided to utilize a Subject Matter Expert to provide input to the Technical Mandatory Evaluation Team concerning Mandatory Requirement 4.3. No fairness deficiencies were identified concerning the input subsequently provided by the Subject Matter Expert.

Mandatory Requirement 4.3 read as follows:

During the period March 20 to May 1, 2015 we reviewed proposed clarifications to bidders and the answers received, concerning Mandatory Requirement 4.3. Fairness related comments were provided and appropriate action was taken by Contracting Authority officials.

On March 26, 2015 Contracting Authority officials sent an email clarification request to a bidder (hereafter referred to as Bidder A), which read in part:

In regards to your recent bid for solicitation number EQ986-133623/A Port Granby Long Term Waste Management Facility, you have submitted a ISO 9001:2008 registration certificate belonging to (a subcontractor of the bidder). As a result, the evaluation team requires clarification under the Mandatory Criteria section 4.3 of your bid as follows:

1. Where in the bid do you demonstrate criteria 4.3 a) ‘The bidder is currently certified by an accredited registrar to ISO 9001:2008'?

   Or

2. As stated in 4.3 b) provide us with a letter and audit report from an independent 3rd party, who is certified as a Lead Auditor in Quality Management System audits demonstrating ‘The bidder's quality management system has been deemed to be compliant with ISO 9001:2008 within one year prior to the bid closing date. For example, if the current closing date is January 15, 2015, the bidder must be compliant on or after January 15, 2014.

Bidder A did not respond as requested but instead reiterated its position, stated in its proposal, that it would adopt the Quality Management System of one of its subcontractors. Similarly the bidder did not answer the second question, and instead provided the latest quality audit report for its subcontractor.

On May 1, 2015 Contracting Authority officials sent an email clarification request to a bidder, (hereafter referred to as Bidder B), advising it that it had failed to comply with Mandatory Requirement 4.3 a) and provided it with an opportunity to comply with Mandatory Requirement 4.3 b). The clarification request to Bidder B read in part as follows:

As set out in 4.3 b), please provide us with a letter and audit report from an independent 3rd party, who is certified as a Lead Auditor in Quality Management System audits, that demonstrates the bidder's quality management system has been deemed to be compliant with ISO 9001:2008 within one year prior to the bid closing date. Your response to this request must be received by May 7, 2015 and if received later than this date, it will not be considered in the evaluation of your Proposal. If you provide information other than that requested above, it will not be considered. (Bolding by FM for emphasis)

Bidder B did not respond to the clarification as requested and instead, on May 7, 2015, submitted a Certificate of Compliance with ISO 9001:2008 dated May 7, 2015 that it had just obtained. As noted above, the email clarification request stated that such information would not be considered because it was not requested. However, contrary to its statement, PWGSC did consider the information submitted.

On May 12 and 13, 2015 a second meeting of the Technical Mandatory Evaluation Team was held. Fairness related comments were provided to the Technical Mandatory Evaluation Team. All but one of the comments were satisfactorily addressed during the meeting. One comment concerning compliance of Bidder A with the Mandatory Requirement 4.3 a) was not satisfactorily addressed during the meeting. Subsequent to the meeting, Contracting Authority officials advised the FM that, as a result of an independent review of the matter, PWGSC had concluded that Bidder A was not compliant with Mandatory Requirement 4.3 a). No fairness deficiency was identified.

During the period May 13 to 14, 2015 the Technical Evaluation Team carried out the evaluation of the Rated Criteria. Fairness related comments were provided and were addressed appropriately by the Technical Evaluation Team.

On May15, 2015 Contracting Authority officials advised the FM that PWGSC was reviewing the finding by the Technical Mandatory Evaluation Team at its May 12 meeting that Bidder B was non-compliant with Mandatory Requirement 4.3 a).

In response, on the same day, the FM reviewed information provided by Contracting Authority officials and confirmed that the FM was satisfied that the Technical Mandatory Evaluation Team had correctly determined that Bidder B was non-compliant with the Mandatory Requirement 4.3 a).

On May 26, 2015 Contracting Authority officials advised the FM that they intended to direct the Technical Mandatory Evaluation Team to consider a revised Certificate of Compliance with ISO 9001:2008 submitted by Bidder B on May 7, 2015, notwithstanding the fact that the certificate was only issued and submitted on May 7, 2015, almost two months after bid closing, and PWGSC had advised Bidder B on May 1, 2015 that any information not requested would not be considered.

On the same day, the FM requested Contracting Authority officials to explain the basis on which the officials considered that the certificate submitted by Bidder B could be accepted in accordance with the provisions of the bid solicitation.

On June1, 2015 Contracting Authority officials responded to the FM's request, which read in part:

On June 1, 2015, based on the above information received from Contracting Authority officials, we advised them that we would be notifying PWGSC Fairness Monitoring officials that we had identified a potential fairness deficiency because the Contracting Authority officials intended to take action which was not in accordance with the governance structure of the evaluation process, i.e. the Contracting Authority officials intended to issue instructions to the Technical Mandatory Evaluation Team as to how it must evaluate a bidder's response to a particular criterion.

On June 19, 2015 the FM was advised that PWGSC intended to direct the Technical Mandatory Evaluation Team to reconsider the contents of the certificate provided by Bidder B on the basis of whether it complies with article 4.3 a) and to advise the Technical Mandatory Evaluation Team that it could not reject it on the basis that it constituted a bid repair.

On June 22, 2015 we advised Contracting Authority officials of the FM's position concerning potential fairness issues which is summarized as follows:

Paragraph 6.1 of the FM contract required, inter alia, the FM to "monitor the actions and decisions of each entity/individual within the governance structure and determine if these actions and decisions remain consistent with the established governance structure".

The FM provided the opinion that pursuing the course of action described would constitute a serious fairness deficiency because the direction to the Technical Mandatory Evaluation Team would not be based on the governance structure of the project pertaining to the evaluation of bids.

In addition, it was noted that the pursuit of the course of action described would result in other serious fairness deficiencies being identified.

The first additional serious fairness deficiency would result from the fact that in several emails to the FM, Contracting Authority officials had implied or stated that they had made a request to Bidder B in accordance with their interpretation of the second last sentence of Article 4.3 b) which read as follows: "If this information is not provided by the bidder in the bid submission, the Contracting Authority will so inform the Bidder and provide the Bidder with a time frame within which they must meet the requirement."

The requirement in the bid solicitation to inform the bidder and provide it with a time frame within which they must meet the requirement is not optional. It must take place. The bidder was not so informed and provided with such a time frame to meet the requirement, Contracting Authority officials did not follow their own interpretation of the application of the second last sentence of 4.3 b) as being applicable to 4.3 a). This would constitute a further serious fairness deficiency if the approach described above is implemented.

A further serious fairness deficiency would result is the fact that Contracting Authority officials did not provide all bidders with an equal opportunity to respond in accordance with the Contracting Authority officials' interpretation of the application of the second last sentence of 4.3 b). No action had been taken by Contracting Authority officials to provide Bidder A with an opportunity to meet the requirement, whereas Bidder B had been allowed to take almost two months to do so.

We also advised Contracting Authority officials of our opinion concerning the applicability of the second last sentence of Article 4.3 b) to 4.3 a). Contracting Authority officials had advised the FM that their opinion as to the applicability of the second sentence of Article 4.3 b) had evolved during the course of the bid evaluation phase, and that they now were of the opinion that the second last sentence of 4.3 b) applied to the requirement in 4.3 a) as well as the requirement in 4.3 b). Their opinion was based on an analysis of the sentence structure, punctuation and wording of Article 4.3, and that it could be concluded that the matter of the applicability of the second last sentence is ambiguous. Accordingly, for bid evaluation purposes, the Contracting Authority officials had applied the second last sentence to both 4.3 b) and 4.3 a).

The FM noted that it had stated that it did not agree with this opinion and further stated that, in any event, opinions on this matter were not relevant to the issue at hand. The issue was whether or not the Technical Mandatory Evaluation Team had made a proper and correct determination that Bidder B was non-compliant with 4.3 a). The FM's opinion was that the Technical Mandatory Evaluation Team made a proper and correct determination, even if the second sentence of 4.3 b) was taken to apply to 4.3 a). The reason for this was explained as follows.

The wording of the second last sentence in 4.3 b) was as follows:

If this information is not provided by the bidder in the bid submission, the Contracting Authority will so inform the Bidder and provide the Bidder with a time frame within which they must meet the requirement.

The analysis of this sentence provided by Contracting Authority officials was based on the opinion that the words "this information" lack clarity.

In the FM's opinion that the words do not lack clarity and clearly refer to the information required to demonstrate compliance with the requirement stated in the RFP. With respect to 4.3 a), the Mandatory Requirement read as follows:

The bidder must provide documentation to demonstrate that: a) the bidder is currently certified by an accredited registrar to ISO 9001:2008.

Accordingly, in the FM's opinion, with respect to 4.3a) the words "this information" clearly mean "documentation to demonstrate that: a) the bidder is currently certified by an accredited registrar to ISO 9001:2008".

The FM has seen the wording of the second sentence of 4.3 b), or similar wording, used in many PWGSC bid solicitations and has never encountered a case where the Contracting Authority suggested that the words "this information" could mean other than the stated mandatory requirement.

On June 22, 2015 Contracting Authority officials provided the following response concerning two of the above identified potential fairness deficiencies:

As relates to the two newly identified potential fairness deficiencies I will try and address those in a preliminary way herein.

1. The Contracting Authority did indeed "so inform the Bidder and provide the Bidder with a time frame within which they must meet the requirement". You will note that your organization received this e-mail on May 1st. The content of the clarification request required (Bidder B) to respond by no later than May 7th and in fact they did respond both on May 6th and n (sic) May 7th. The revised quality management certificate, which itself has become the subject of much attention and discussions, was indeed received by PWGSC on May 7th, -- within the time allotted to (Bidder B) in the clarification request. We trust that this information addresses your concerns on this matter.
2. In regards to your second potential deficiency, the approach that (Bidder A) took in bidding on article 4.3 was quite different than both (Bidder B) and others. Unlike the others (Bidder A) did not identify in either their bid nor their bid clarification, that they themselves possessed a quality management certification but rather they tried to argue that Canada ought to accept the certification of their primary sub-contractor. Collectively the FM, RPC* and Legal Services were all of the opinion that (Bidder A) position here failed to satisfy the requirements of article 4.3 and they were declared non-compliant.

   To be clear Bidder A was indeed given a second opportunity through bid clarification to provide information on either article 4.3 a) or b) for our consideration. In addition, PWGSC consulted a third party subject matter expert to determine if there was any validity to the approach proposed by (Bidder A). Our approach here and the wording would have been vetted by the FM. In the clarification (Bidder A) responded with a re-statement of the same position that they articulated in their RFP response. Once again we collectively found them to be non-compliant.

   I am not certain if you are suggesting allowing a third attempt here, however if you are I am not sure what question you feel that we could ask under our process that elicit a different response that Canada could use. I am not sure on what basis you are trying to argue that the position of our department relative to option one necessitates any additional action by us as relates to the bid from (Bidder A).

*The acronym "RPC" means "Real Property Contracting".

On June 23, 2015 we advised the Contracting Authority officials as follows:

(Contracting Authority official) please see the comments below in response to your email of June 22, 2015 using your numbering 1. and 2.

1. As you know the first attachment that you provided (email from Contracting Authority official) to the bidder (Bidder B) dated May 1, 2015 was sent in order to advise the bidder that they were considered to be non-compliant under 4.3 a) and accordingly were invited to submit documentation in accordance with 4.3 b). As can be seen clearly from the wording of the email it was sent to provide an opportunity to comply under 4.3 b) not 4.3 a) within a time frame.

   As you know the reason for your approach was that, at the time the email was sent, you had not changed your opinion as to the applicability of the second last sentence of 4.3 b), which you subsequently did, and were acting on the basis that no second opportunity could be provided to Bidder B to provide the documentation requested under 4.3 a).

   Accordingly it would be a misrepresentation of what the email requests, to state that it was a request to provide documentation to satisfy the requirement in 4.3 a).

   Accordingly our FM position stands.

2. As you also know, the second attachment that you provided (email from (Contracting Authority official) to the bidder, (Bidder A), dated March 26, 2015 did not request that the bidder submit the documentation requested in the bid solicitation under 4.3 a). The email used a standard clarification format, i.e.

   where in the bid do you demonstrate criteria 4.3 a) The bidder is currently certified by an accredited registrar to ISO 9001:2008"?

   or

   "As stated in 4.3 b) provide us with a letter and audit report from an independent 3^rd party, who is certified as a Lead Auditor in Quality Management System audits demonstrating" The bidder's quality management system has been deemed to be compliant with ISO 9001:2008 within one year prior to the bid closing date. For example, if the current closing date is January 15, 2015, the bidder must be compliant on or after January 15, 2014.

This request did not provide an opportunity to the bidder to submit the documentation required in order to demonstrate that it met 4.3 a).

On June 30, 2015 we observed the consensus evaluation meeting during which the Technical Mandatory Evaluation Team was directed by PWGSC to reconsider the contents of the certificate provided by Bidder B which had been submitted on May 7, 2015. The Technical Mandatory Evaluation Team was directed to assess whether it complied with article 4.3 and that they could not reject the certificate on the basis that it constituted a bid repair. The Technical Mandatory Evaluation Team stated that the certificate complied with Article 4.3 a). In accordance with the direction received from PWGSC, the Technical Mandatory Evaluation Team did not comment on the matter of whether or not consideration of the certificate constituted bid repair.

On August 4, 2015 we were advised by the Contracting Authority that the financial evaluation results and the application of the basis of selection to identify a recommended bidder had been carried out by the Contracting Authority and independently by a second procurement official. No fairness deficiencies were identified.

6. Reference documents

The following documents are referenced by number in the attached report. These documents are available through the Port Granby Long Term Waste Management Facility project office.

Table Summary

The following table includes a list of documents referred to in the report such as the Request for Proposal (RFP), amendments, clarification letters, debriefing letters, etc. Each row is numbered, followed by the document title, then a document identifier such as a date or document number.

No.	Document	Additional information
1	Letter of Interest (LOI)	Released to MERX January 31, 2013
2	Amendment 1 to LOI	Released to MERX February 27, 2013
3	Amendment 2 to LOI	Released to MERX March 5, 2013
4	Amendment 3 to LOI	Released to MERX March 8, 2013
5	Amendment 4 to LOI	Released to MERX March 14, 2013
6	Amendment 5 to LOI	Released to MERX March 18, 2013
7	Amendment 6 to LOI	Released to MERX April 17, 2013
8	Amendment 7 to LOI	Released to MERX April 24, 2013
9	Request for Proposal (RFP)	Released to BuyandSell September 22, 2014
10	Amendment 1 to RFP	Released to BuyandSell October 3, 2014
11	Amendment 2 to RFP	Released to BuyandSell October 7, 2014
12	Amendment 3 to RFP	Released to BuyandSell October 10, 2014
13	Amendment 4 to RFP	Released to BuyandSell October 23, 2014
14	Amendment 5 to RFP	Released to BuyandSell November 3, 2014
15	Amendment 6 to RFP	Released to BuyandSell November 3, 2014
16	Amendment 7 to RFP	Released to BuyandSell November 13, 2014
17	Amendment 8 to RFP	Released to BuyandSell November 17, 2014
18	Amendment 9 to RFP	Released to BuyandSell November 18, 2014
19	Amendment 10 to RFP	Released to BuyandSell November 21, 2014
20	Amendment 11 to RFP	Released to BuyandSell November 26, 2014
21	Amendment 12 to RFP	Released to BuyandSell November 27, 2014
22	Amendment 13 to RFP	Released to BuyandSell November 28, 2014
23	Amendment 14 to RFP	Released to BuyandSell December 3, 2014
24	Amendment 15 to RFP	Released to BuyandSell December 3, 2014
25	Amendment 16 to RFP	Released to BuyandSell December 9, 2014
26	Amendment 17 to RFP	Released to BuyandSell December 10, 2014
27	Amendment 18 to RFP	Released to BuyandSell December 15, 2014
28	Amendment 19 to RFP	Released to BuyandSell December 17, 2014
29	Amendment 20 to RFP	Released to BuyandSell December 17, 2014
30	Amendment 21 to RFP	Released to BuyandSell January 9, 2015
31	Amendment 22 to RFP	Released to BuyandSell January 22, 2015
32	Amendment 23 to RFP	Released to BuyandSell January 30, 2015
33	Amendment 24to RFP	Released to BuyandSell February 5, 2015
34	Amendment 25 to RFP	Released to BuyandSell February 19, 2015
35	Amendment 26 to RFP	Released to BuyandSell February 19, 2015
36	Amendment 27 to RFP	Released to BuyandSell February 24, 2015
37	Amendment 28 to RFP	Released to BuyandSell February 26, 2015
38	Amendment 29 to RFP	Released to BuyandSell March 2, 2015
39	Amendment 30 to RFP	Released to BuyandSell March 4, 2015

7. Annex to long term waste management facility final report - explanation of fairness deficiencies

1. PWGSC provided direction to the Technical Mandatory Evaluation Team as to how it must evaluate a bidder's response to a Mandatory Requirement of the RFP. This action constitutes a serious fairness deficiency because such direction was contrary to the governance structure of the project pertaining to the evaluation of bids. The governance structure specified that the evaluation of a bidder's response was to be carried out by the Technical Mandatory Evaluation Team.

   It is recognized that, notwithstanding input from Contracting Authority officials and fairness related comments made by the FM during the evaluation of bids, an evaluation team may make a determination concerning a bidder's response which, in PWGSC's opinion, is not in accordance with the provisions of the bid solicitation. In such a circumstance, from a fairness perspective, it is extremely important that the accountability for the evaluation of bids remains clear.

   In the current case, from a fairness perspective, after a thorough review of the determination arrived at by the evaluation team and the provisions of the bid solicitation, PWGSC could have chosen to establish a new evaluation team to evaluate the bids, or PWGSC could have taken on the accountability itself and made a determination different than the evaluation team had made, thus ensuring full transparency concerning the evaluation process that was followed.

   Instead, PWGSC issued direction to the evaluation team rather than take on full accountability and provide transparency concerning the evaluation of the bidder's response to the Mandatory Requirement. It is noted that the evaluation team could have refused to accept the direction provided and it is uncertain as to what action would have been taken by PWGSC.

   It is noted that, at the initial meeting of the Technical Mandatory Evaluation Team, Contracting Authority officials strongly disagreed with one of the team's findings concerning the compliance of Bidder A with Mandatory Requirement 4.3 a). PWGSC chose not to establish a new Technical Mandatory Evaluation Team. Instead PWGSC carried out a detailed review of the finding and the provisions of the RFP, and advised the FM that, based on the review, PWGSC had found Bidder A to be non-compliant. Accordingly in this instance PWGSC took on full accountability for the decision, transparency was provided, and the FM did not identify any fairness deficiency.

2. PWGSC accepted certification information from a bidder which had not been requested in accordance with the process specified in a Mandatory Requirement of the RFP, and notwithstanding the fact that PWGSC had specifically advised the bidder that no such information would be accepted. This action constitutes a serious fairness deficiency because PWGSC did not follow a specified mandatory process.

   Contrary to what the Contracting Authority officials have stated, no request was made to Bidder B informing the bidder that required certification documentation specified in 4.3 a) had not been provided, and that the bidder must submit it within an identified time frame. Such a request was not optional, it was a requirement of the bid solicitation. The request to the bidder only dealt with a request and time frame concerning the provision of an audit report in accordance with the requirements of 4.3 b), and did not allow for the submission of any other documentation such as the Certificate dated May 7, 2015 that was submitted by the bidder.

3. PWGSC allowed one bidder to become certified after bid closing but took no action to provide a second bidder with the same opportunity to become certified. This constitutes a serious fairness deficiency because PWGSC did not provide all bidders with an equal opportunity to provide certification documentation and be considered compliant.

   As noted in paragraph 4 below, PWGSC applied an interpretation of the wording of Mandatory Requirement 4.3 a) as allowing a bidder to become certified any time after bid closing. Using this interpretation of the wording, PWGSC allowed Bidder B to become certified and considered compliant but did not then provide an opportunity for Bidder A to be considered compliant by becoming certified after bid closing.

4. PWGSC accepted certification documentation from a bidder which did not exist at bid closing but was only obtained approximately two months after bid closing. Such action constitutes a serious fairness deficiency because the action was contrary to the provisions of the RFP which required a bidder to provide documentation to demonstrate that it was currently certified.

   The RFP Mandatory Requirement 4.3 a) read as follows:

   "The bidder must provide documentation to demonstrate that: a) the bidder is currently certified by an accredited registrar to ISO 9001:2008"

   The word "currently" is defined in the Oxford dictionary as meaning "at the present time". It is not defined as meaning at some undefined future time. Accordingly, since the Mandatory Requirement 4.3 a) was a term of the bid solicitation at bid closing, the word "currently" can only mean at the time of bid closing.

   The FM has seen many cases where PWGSC wished to allow for a mandatory requirement to be met other than at bid closing. In these instances the bid solicitation was worded such that the bidder was required to demonstrate that it was compliant with the mandatory requirement as a condition precedent to contract award, or by a stated time frame after contract award. It is clear that the wording in this bid solicitation is not stated as a condition to be achieved precedent to contract award, but PWGSC allowed Bidder B to become compliant after bid closing.

   PWGSC's interpretation of the requirement in 4.3 a) would allow a bidder to become certified at an undefined time after bid closing, making it impossible to complete the evaluation of bids in a fair manner. It would not be possible to fairly determine a timeframe to allow different bidders to obtain the required certification and become compliant.

   Accordingly, it is the FM's opinion that the wording in the bid solicitation required a bidder to provide documentation to demonstrate that it was currently certified to ISO 9001:2008, i.e. at bid closing, not that it could become certified at a future undefined date, and it is the FM's opinion that the Technical Mandatory Evaluation Team made a proper and correct determination as to the non-compliance of Bidder B with the certification requirement in 4.3 a).